THE IMPACT OF TIME ON FRANCHISE CONTRACTS

Dr. Alicia García-Herrera, Lawyer.

Dr. Rafael Llorca-Vivero, University of Valencia, Spain.

ABSTRACT

The aim of this paper is to build a simple theoretical model for the optimal expected duration of the franchise contract. Our results confirm the standard positive correlation between fixed investment and contract duration although highlighting that other variables such us the price-cost margin of the franchise, its average sales (brand name) or the discount factor also matter. Moreover, firm’s own ability has a small impact on contract duration but it is a determinant factor in order to establish the corresponding breach penalty in the event of early termination without good cause.

INTRODUCTION

A franchise contract is defined as an organizational form between two independent firms with the aim of selling goods and services in a specific area. This relatively new distribution technique has increased competition among firms producing economic benefits in terms of higher efficiency and transaction costs reductions. Additionally, it allows franchisors the access to new markets raising capital, sharing risks and saving cost but maintaining the control of the franchisee’s behaviour.These new techniques based on cooperation are especially important for small and medium-sized firms.Franchise networks have increased since the second half of the twenty century and, nowadays, they represent almost a third of retailing in USA. In Europe, the impact of franchising is still minor but a growing tendency is observed in the use of this distribution form.

The heart of the contract is the transmission of a model business -and subsequently franchisor’s brand name and another intellectual or industrial property rights- and the provision of technical and commercial assistance. In exchange, the franchisee has to pay a fixed initial fee and ulterior royalties, commissions or percentages of sales retailers. The monitoring of the distribution process by the franchisor takes place through the imposed terms of the contract, allowing the necessary standardisation in order to create a homogeneous and uniform distribution network. The franchisor controls the supply and distribution, the resale of the goods by recommending resale prices, and coordinates the franchisee’s advertising and promotional activities.

Franchise contracts also imply certain risks. Vertical restraints become apparent from the Antitrust Law perspective. In USA, practices like the resale price maintenance or price discrimination, territorial restrictions, tied in sales or the refusal to supply can constitute an antitrust violation. Sherman, Clayton and Robinson Pactman Acts may be applied to the franchise. Economic analysis has justified vertical restraints associated to franchise contracts and other distribution agreements because of their efficiencies and benefits[a]. As a result, the European Competition Law has partially adopted this point of view and vertical restraints are sometimes a subject of categories exemptions. Therefore, the main problems of these contracts become evident in the internal relationship. The high number of conflicts is connected with the opportunistic behavior of the parties. Both franchisors and franchisees have incentives to act in their own interest, taking advantage of the gaps and the lack of definition of some terms of the written contract, despite the obligation of considering the common interests. From the agency theory perspective, the franchisor must protect the value of his trademarks from the problems of adverse selection and moral hazard. The franchisee has to be worried about franchisor hold-up or his ex-post opportunism because he has to incur in specific investments (sunk-cost). Through encroachment, by exercising his right to cancel or terminate the relationship or excluding the renovation of the lease contract, the franchisor can appropriate the franchisee’s investment and the local goodwill built by the distributor.

In contrast to the European case, where few legislations regulate the franchise contracts, these interest conflicts have supposed in USA a codification movement about franchising (García-Herrera, 2006). This legislation protects the franchisee, because of his weaker position in the contract and the appreciation of a superior risk of franchisor opportunism. Since 1979, at the federal level franchisees and dealers are protected in some aspects like disclosure and registration. The termination in the petroleum and automobile sectors are regulated by federal laws and, in the latter case, by state laws also. Seventeen states and the Columbia district, Puerto Rico and Virgin Islands restrict the franchisor’s ability to terminate the contract. The Common Law and General Statutory have been also applied to the franchise relationship in order to resolve the disputes between the parties, especially those related with the termination of the relationship by the franchisor. The insufficiencies of the Federal Trade Commission rules in the treatment of abuses casesabout the franchisee and the miscellany in the legislation that response to the conflicts arising in the internal relationship advise a reform of this system, designed specially to protect the parties from reciprocal opportunism.

In front of these view, economists are reluctant to accept any kind of state interventionism in the franchise area. Since the last two decades, the literature has strove to understand and explain the economics of franchise contracts (Mathewson & Winter, 1985; Dnes 1993). These studies have connected the franchise contract with the theory of incomplete and relational contracting and have demonstrated the ability of franchising in the reduction of the agency and transactions cost problems, which are essential to the survive of new franchisors in establishing new franchise networks (Shane, 1998). The academic literature considers that a risk of ex-post opportunistic behavior by the parties exist but empirical work shows that the contract clauses are able to protect each party against reciprocal opportunism (Dnes, 1996). The literature has also analyzed the role of monetary clauses in the contract (Lafontaine and Shaw, 1999) and other some specific clauses in order to control the opportunistic behavior of the parties (Mathewson and Winter, 1994). Empirically, the global analysis of the clauses in automobile franchise contracts allows to assert that the asymmetric allocation of rights in detrimental of the franchisee are able to solve the incentive conflicts that are characteristic of this commercial relationship (Arruñada et al. 2001, 2005). So, from this point of view, the laws that regulate franchise relationships are not justified. Therefore, termination laws have a real negative impact on franchise contracts, implying a loss of efficiency and an increase in transaction cost (Smith II, 1982; Brickley et al. 1991; Beales and Muris, 1995 or Blass and Carlont, 2001).

As a general rule, economic analysis has ignored one of the most important aspects of the franchise contract: duration. But an optimal duration of the contract connected to fixed investments can reduce incentive conflicts and can prevent the hold-up problem or underinvestment (Guriev and Kvassov, 2005). This argument finds support from an economic and law perspective, with possible widespread repercussions throughout this last scope. In USA, applying the Common Law, courts have created implied contractual conditions and have recognized that the franchise cannot be terminated until the franchisee has had a reasonable opportunity to regain his investment and a reasonable profit and only on reasonable notice. Thus, the laws that increase the cost of the franchise contracts termination could act as a mechanism that contributes to maintain a reasonable duration of the contract, except good cause that justify the breach remedy.

Our goal is, therefore, to demonstrate by means of the economic analysis that an optimal time period for the franchise contract exists. Our results show that variables such as the initial investment, the price-cost margin of the franchise, its average sales or the discount factor matter for the optimal expected duration of the contract. Moreover, we demonstrate that franchisee’s owns ability mainly determines the amount of the breach penalty in the case of early termination.

The rest of the paper is organized as follows. Section II contains the theoretical model. In section III we present some practical implications of the model. Section IV concludes.

A SIMPLE THEORETICAL MODEL

In this section, our interest is strictly directed to optimal duration of the franchise’s contract. Therefore, in our model, we do not explicitly take into account agency issues (vertical and horizontal externalities) arising from the franchisor–franchisee and franchisee–franchisee interactions already accounted for in the seminal paper of Mathewnson and Winter (1985) and subsequent extended research. However, as we will see, essential aspects that characterize this type of contract relationship are implicitly assumed.

Very recently, the importance of time in contracting has been highlighted by Guriev and Kvassov (2005). These authors develop a continuous time model in which contract duration is an essential factor for the provision of the adequate investment incentives. The main conclusion reached in this study is that efficient investment is attained both by a chain of constantly renegotiated fixed-term contracts or by a renegotiation-proof “evergreen” contract. In the latter, the termination of an indefinite duration contract takes place with advanced notice and the payment of an “optimal” lump-sum breach penalty to the party that has made the investment. This result applies for any kind of duration contracts, as, for instance, franchise.

However, despite the great interest of the aforementioned research, our focus is directed to more practical and realistic considerations, trying to give some useful element criteria for courts in the event of litigation. Usually, the franchisee, when signing the contract has to incur in a fixed amount of specific investment (fixed fees and physical and human capital) imposed by the franchisor. Therefore, in practice, the franchisee is not able to continuously “adjusting” investment and time in order to reach the equilibrium but time is the only adjustment mechanism. Obviously, franchisors realise on it making the franchisee more vulnerable by restricting its bargaining power[b] and being timean additional factor of discipline. Thus, as many authors have recognized, contract duration is a form of protecting the franchisee’s investment but at the cost of reducing franchisor flexibility in order to adapt to exogenous shocks.

Taking into account the above considerations, we develop a simple theoretical model for the franchisee’s decision of being during a specific period of time in a franchise network. We start by the firm’s profit function and derive the optimum period of time of the corresponding contract. The approach followed is similar to the firm’s investment in physical capital except for the fact that we consider that the fixed amount required by the franchisor (the initial investment) is shared over the period of time the franchisee expects is going to take place the business relationship, that is, the optimal expected length of the relationship. The only relevant difference between the standard approach relating investment in physical capital and franchise from the investor’s point of view is that there exists uncertainty about the investment duration. The franchise contract can be breached in an unexpected point in time whereas the fixed capital is in the production process the period of time desired by the economic agent.

The profit function in a given moment of time of the franchisee “i” considering that the franchise is going to take place for “” years has the form:

(1)

where:

- is time.

- is the good/service price. We consider that all the franchisees in a franchise network charge the same price. This is consistent with Mathewson and Winters (1985) statement about the observable practice and incentives that franchisors have in order to “…stamping prices on products…”.

- is the variable cost (including royalties or variable fees given to the franchisor). We assume that all the firms are symmetric in this sense and, therefore, they face the same cost function over time. As Lafontaine and Shaw (1999) demonstrate royalties are independent on franchise experience and, therefore, the fact to consider these costs as given is not an “heroic” assumption.

- are the average sales of the franchise. Its amount in a specific market would approximate the relevance of the “brand name”. For a given number of outlets, better established brands will have, ceteris paribus, more sales.

- is the franchisee “ability” index. We consider that the ability index is normally distributed with mean 0 and variance and defined in the (-1, 1) domain. That is, if a firm has the ability of the typical (average) firm, then. More “efficient” franchisees will have a value of greater than zero and the contrary occurs with less “efficient” firms. In this context, “efficiency” implies that a firm will have more sales than the average, probably as a consequence of better distribution and marketing techniques.

- are fixed (sunk) costs. That is, the initial investment incurred by the franchisee.

- represents experience, that is defined in the most simple way as cumulative production. That is: .

We are, therefore, assuming that the sales of a franchisee in a given moment of time depend on the average sales of the franchise (the brand name), the accumulated experience and the own ability of the firm. That is, .

It is easy to demonstrate that and, therefore[c]:

(2)

In order to make this expression operative, it is clear that for “t” large enough tends to [d]. Making operations with expression (2) we have that , that is to say, firm’s experience grows with time and , the greater the firm’s ability is () the higher will be the impact of time on experience. That is, more productive firms, take greater advantage for more experienced franchises.

When then, that is, the impact of time on franchise experience is constant and proportional to average sales (). Therefore the older franchises have advantage over the younger ones.

With respect to the franchisee we have that and , that is, firm sales are increasing with its own ability as time spans.

The last step in considering ex-ante contract characteristics is the inclusion of the discount factor. Let , the price-cost margin in absolute terms which is assumed fixed for all the franchisees. This is in line with previous assumptions. In most franchises business prices are common for all the franchisees as are variable costalso.

Therefore, firm profits have the following general expression:

(3)

And for the typical firm:

(4)

It should be noted that, from equation (4), the condition of positive profitsis that. That is, in the absence of a discount factor, the point of zero profits (and after this point, positive ones) will simply require more years the greater the ratio is between fixed cost and the absolute price-cost margin times average sales[e] (the latter, henceforth “average absolute margin”). But, as long as a positive discount factor is considered, there exist the possibility of negative profits for the entire time period because the above expression could not be accomplished due to the fact that the discount factor is exponentially affected by time. That is, the higher the discount factor the higher the probability of no positive expected profits, and, therefore, the franchise contract will not take place.

Apart from the aforementioned interaction between the discount factor and time, note that time enters the profit functions (3) and (4) in two ways: first, duration affects franchise and firm experience[f] (learning by doing argument) and, second, it reduces the fixed cost per unit of time (cost-spreading argument).

In order to make equation (3) analytically tractable, as before noted, when time is large enough, we have that:

(5)

The first order condition will give us the optimum number of years for the franchisee’s investment. That is: , which implies that:

(6)

And for the typical firm, the expression simplifies to:

(7)

When , it is quite clear that an optimum does not exist because “ex-ante” profits are always increasing with time. Additionally, note that, in order an equilibrium to exist, the left hand side of equations (6) and (7) must be positive that would only be the case when and , respectively . That is to say, an equilibrium will exists if the negative effect of the discount factor on expected profits overweightthe positive impact of experience. This will occur when “t” is large enough. Obviously, for more efficient firms this condition is going to take place later.

The left hand side of equations (6) and (7) is increasing once it takes positive values until a point beyond which the contrary occurs. As the second order condition establishes[g], the upward sloping of the function will be the relevant one. Thus, as it seems quite logical, given the discount factor, the higher the ratio is between fixed cost and average absolute margin in a franchise thehigher will be the optimal time period. We have performed numerical simulations[h] (table 1) in order to know the impact of this ratio. As was expected, minor differences are observed in the optimal duration contract when the discount factor is low but these differences wider as the discount factor grows. As before noted, if the discount factor and the ratio of fixed cost to average absolute margin are high enough, the franchise contract is not profitable for the franchisee. Moreover, the higher the discount factor is the lower the optimum time of the franchise contract will be. The explanation comes from the faster rate at which expected profits decrease as the discount factor grows. Graph 1 shows for a specific case the impact of the discount factor on the optimal time period as well as on the amount of profits.